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Fahrenbruck v. Montana Power Co.

Court of Workers Compensation of Montana

June 23, 1994

CARL FAHRENBRUCK, Petitioner,
v.
MONTANA POWER COMPANY, Defendant/Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         The trial in this matter was held on November 1, 1993 in Billings, Montana, the Honorable Mike McCarter, Judge of the Workers' Compensation Court, presiding. Petitioner, Carl Fahrenbruck (claimant), was present and represented by Mr. Patrick R. Sheehy. Respondent, Montana Power Company (MPC), was represented by Mr. Robert T. O'Leary. Claimant, Brenda Williams, and Jerry Woods testified. Exhibits 1 through 10 and 16 were admitted into evidence without objection. Exhibits 11 through 15 were duplicates and were withdrawn. Exhibits 17 through 21 were identified in two post-trial depositions. There being no objections to the additional exhibits, they are also admitted. The depositions of Dave Johnson and Janelle Jensen were taken after trial and submitted to the Court for its consideration.

         The principal issue in this case concerns claimant's entitlement, if any, to permanent partial disability benefits under sections 39-71-705 to 708, MCA (1983).

         Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant is 56 years old and married. At the time of his industrial injury he was 47 years old.

         2. Claimant attended school through the fourth grade. He did not continue schooling because his family needed his help on the family farm. He cannot read or write.

         3. Claimant worked on his family's farm as a laborer from the time he dropped out of school until he was 19. Claimant then worked as a laborer for other farmers for a number of years. He also operated and repaired heavy equipment for two contractors.

         4. Claimant began working for MPC as a utility worker on August 8, 1979. As a utility worker he performed heavy manual labor.

         5. He became a journeyman mechanic in 1982 after he completed an apprenticeship program. Claimant completed the apprenticeship with the help of his co-workers and instructors, who read the course materials to him and allowed him to take tests orally.

         6.In the fall of 1983 claimant was assigned to do mechanical work on a dredge at MPC's Colstrip operation. He continued in that position until the time of his injury.

         7.Claimant injured his neck and lower back on January 25, 1985, while working on the dredge. He was attempting to remove a bolt from a pump when the bolt broke. He fell backwards, hitting his back on the corner of a doorway. Claimant felt immediate pain in the lower part of his back. Over the next few days he also began experiencing pain in his neck and a sensation that bugs were crawling on his right arm. Although he did not initially seek medical treatment and continued working, over the next few months his symptoms intensified.

         8.Claimant filed a formal claim for compensation on August 7, 1985.

         9.MPC is self-insured under Plan 1 of the Montana Workers' Compensation Act and it accepted liability for the claim.

         10.In the early summer of 1985 claimant consulted a physician in Forsyth about his condition. He was referred to Dr. Lewis Robinson, a neurologist in Billings. Dr. Robinson examined claimant on July 9, 1985 and made a preliminary diagnosis of C7 radiculopathy. (Ex. 3 at 29.) Following a myelogram of claimant's neck, a herniated disc at C6-7 was diagnosed. The herniation was on the right side. (Ex. 3 at 57.) On July 11, 1985, Dr. Neil Meyer, a neurosurgeon, performed an anterior cervical disc excision and fusion of the C6-7. (Ex. 3 at 53.)

         11.Claimant ceased working in early July 1985 and began receiving temporary total disability benefits. (Ex. 4.) Temporary total disability benefits of $293.00 per week were paid from July 2, 1985 until May 17, 1988. (Statement of Uncontested Facts.)

         12 The July 11, 1985 surgery relieved claimant's neck and arm pain. However, he continued to have considerable pain in his lower back. Since surgery claimant has also had a sore, hoarse throat due to a paralysis of the right vocal cord. That paralysis resulted from traction on his superior laryngeal nerve during surgery. (Ex. 3 at 49; Ex. 3 at 35.) Also, a mild tremor in his right arm has worsened since the surgery. Claimant's tremor is diminished by medication (Inderal). (Ex. 3 at 47.)

         13.Claimant initially attempted to return to work on October 1, 1985, but worked only a few days. He experienced pain and on October 7, 1985, Dr. Meyer examined claimant on account of his low back pain. The pain radiated into the legs. A CT scan done at that time revealed a narrow canal at L3-4, degenerative disc protrusion at L4-5 along with spinal stenosis, and L5-S1 central disc protrusion. (Ex. 3 at 46.) Claimant was unable to continue working and was placed back on temporary total disability benefits. (Ex. 4.)

         14.Claimant again returned to work for MPC on January 11, 1988, as a utilityman and was assigned light-duty work. However, his back continued to hurt and on February 20, 1988, claimant ceased working and went back on temporary total disability.

         15.On May 17, 1988, claimant returned to work and was assigned a job driving a van to transport workers to different parts of the Colstrip plant. Claimant worked as a van driver until April 28, 1993, when he was reinstated as a journeyman mechanic in the machine shop.

         16.At the time of his injury claimant's wages as a journeyman mechanic were $15.91 per hour. From May 18, 1988 to April 28, 1993, claimant was paid utilityman wages, which were less than the wages for a journeyman mechanic. (Ex. 1). The following chart shows the wages for mechanics and utilitymen between 1988 and 1993, and the claimant's last wages for that period.

Start Date

5/85

1988

1989

1990

1991

1992

Mechanic: Hourly

$15.91

$17.56

$18.09

$18.53

$19.09

$19.77

Utilityman Hourly:

NA

$13.72

$14.13

$14.57

$15.01

$15.54

Hourly Difference

$3.84

$3.96

$3.96

$4.08

$4.23

Weekly Difference

$153.60

$158.40

$158.40

$163.20

$169.20

Number of Weeks

58

56

48

48

44

Total Loss for Period

$8, 908.80

$8, 870.40

$7, 603.20

$7, 833.60

$7, 444.80

TOTAL WAGE LOSS

1988-93

$40, 660.80

         The foregoing calculations are based on Exhibit 1, to which both parties stipulated.[1]

         17. MPC paid claimant permanent partial disability benefits pursuant to section 39-71-703, MCA, with respect to the wage loss set forth in the preceding paragraph. Initially, it based those benefits on the difference between the claimant's wage at the time of his injury and his actual wages as a utilityman. Between May 17, 1988 and March 14, 1993, MPC paid claimant $9, 910.68. In March of 1993 Jerry Woods, MPC's workers' compensation claims manager, determined that the benefits had been improperly calculated and should have been based on the difference between the current wages for mechanics and claimant's actual wages. MPC therefore recalculated claimant's entitlement in accordance with the above chart and made up the difference in a March 26, 1993 lump-sum payment to claimant in the amount of $17, 199.06. ...


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